Anderson, B. v. Anderson, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RIAN T. ANDERSON : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SHERRY ANDERSON : No. 1089 WDA 2020
Appeal from the Decree Entered September 23, 2020
In the Court of Common Pleas of Lawrence County Civil Division at
No(s): 11036 of 2016, C.A.
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: July 2, 2021
Appellant, Rian T. Anderson (“Husband”), appeals from the decree
entered September 23, 2020 divorcing Husband and Appellee, Sherry
Anderson (“Wife”), from the bonds of matrimony. In this appeal, Husband
challenges an earlier order entered on March 12, 2020, dividing the marital
estate and awarding alimony and counsel fees to Wife. We affirm.
Husband and Wife were married in 1997 and separated in 2009. The
couple had two children together, who were 19 and 17 years’ old as of the
date of the master’s hearing. Wife bore the bulk of the child-care
responsibilities during the marriage and continued to do so after the
separation, but she had recently resumed part-time employment as a
pharmaceutical technician after many years of not working. Husband was
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* Retired Senior Judge assigned to the Superior Court.
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employed full-time as a mechanic throughout the marriage and as of the date
of the master’s hearing he was paying Wife $260 per month in spousal support
and $645 per month in child support.
The couple had a marital residence on a 17.1 acre parcel in Edinburg,
Pennsylvania, which Husband had purchased prior to the marriage, but the
title of which was transferred to both Husband and Wife during the marriage.
After the separation, Husband continued to live in the marital home while Wife
and the two children moved into a home owned by Wife’s parents, where she
paid rent. The property was subject to an oil and gas lease since 2012, and
the parties had evenly split the royalties from the lease. Between 2012 and
2018, Husband and Wife each received $66,209 from the lease.
Husband filed a divorce complaint on October 28, 2016 with a claim for
equitable distribution. By an order entered September 21, 2018, the divorce
was bifurcated and a master was appointed. On October 1, 2018, Husband
filed an affidavit pursuant to Section 3301(d) of the Divorce Code, 23 Pa.C.S.
§ 3301(d), and Wife filed a counter-affidavit on December 10, 2018. On March
4, 2019, Wife filed a petition raising claims of alimony, alimony pendente lite,
counsel fees, and equitable distribution.
On April 30, 2019, a hearing was held before a master. At the hearing,
the parties stipulated to the admission of exhibits and the value of the marital
residence, and Husband and Wife each testified. On September 3, 2019, the
master issued her report. As relevant here, the master concluded that there
was $23,186 in equity in the marital residence based upon the stipulated value
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of the house of $150,000 less the outstanding balance on the mortgage.
Master’s Report, 9/3/19, at 9. The master recommended that Husband retain
the marital residence, including the oil and gas rights, subject to Wife’s
continued receipt of 50% of the oil and gas royalties until the marital residence
was transferred into Husband’s name alone. Id. at 9-10. The master also
recommended that Husband retain 100% of an IRA from a prior employer and
that Wife receive 60% of the marital portion of his 401(k) plan with his current
employer, measured from the date of hire to the date of separation. Id. at
10. After a consideration of the relevant statutory factors, the master
recommended that Wife receive alimony in the sum of $260 per month until
the graduation of the son from high school and $450 per month for 51 months
thereafter. Id. at 10-13. The master further recommended that Husband pay
$1,000 towards Wife’s counsel fees. Id. at 13.
Both parties filed exceptions to the master’s report. After hearing oral
argument, the trial court entered an order on March 12, 2020 concerning the
economic claims. The trial court awarded Husband the marital residence but
directed him to pay Wife $13,911.60, which constituted 60% of the equity
value of the home. Order, 3/12/20, at 6. The trial court also provided that
Husband and Wife shall share equally in the royalties from the oil and gas
lease going forward. Id. The trial court adopted the master’s
recommendation concerning Husband’s IRA and 401(k) funds. Id. at 7. With
respect to Wife’s alimony claim, the trial court further ordered that Husband
pay $260 per month until the son’s high school graduation and then $450 per
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month for 48 months. Id. at 9-10. The trial court also awarded Wife $2,000
for counsel fees. Id. at 10.
Husband filed a notice of appeal from the trial court’s March 12, 2020
order, but this Court sua sponte quashed the appeal as being from a non-final
order because, while the trial court had resolved the parties’ economic claims,
no divorce decree had been entered. The trial court then issued the divorce
decree on September 23, 2020. Husband filed a timely notice of appeal of
that order on October 14, 2020.1
Husband raises the following issues on appeal:
1. Whether the Court erred in awarding Alimony and Counsel Fees
where the claim for alimony was not timely filed or properly
entered including supporting documentation in accordance with
Pennsylvania Rule of Civil Procedure 1920.31.
2. Whether the Court erred in awarding fifty (50) percent of any
royalties from the former marital property, wherein the Court
awarded the property to [Husband] whom is solely responsible for
all taxes, mortgages and any lien on the property without free and
clear title solely in his name.
Husband’s Brief at 20.
Husband’s first issue relates to the award of alimony and counsel fees
to Wife. Awards of alimony and counsel fees are within the sound discretion
of the trial court and will not be disturbed absent an abuse of discretion or
error of law. Cook v. Cook, 186 A.3d 1015, 1019 (Pa. Super. 2018). To the
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1 Husband filed his concise statement of errors pursuant to Pa.R.A.P. 1925(b)
on October 27, 2020. The trial court issued its Rule 1925(a) opinion on
November 25, 2020.
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extent our analysis requires us to interpret the Rules of Civil Procedure, our
standard of review is de novo and our scope of review is plenary. Sayers v.
Heritage Valley Medical Group, Inc., 247 A.3d 1155, 1159 (Pa. Super.
2021).
Husband argues that the trial court abused its discretion by granting
Wife alimony and counsel fees when Wife failed to follow the requirement of
Rule of Civil Procedure 1920.31(a) that she file income and expense
statements in the form set forth in the Rules. See Pa.R.C.P. No.
1920.31(a)(1). Husband contends that Wife also failed to adhere to Rule
1920.31(a) by not waiting “at least 30 days following the filing of [her] tax
returns, Income Statement, and Expense Statement” before filing her petition
seeking alimony and counsel fees. Id. Husband submits that the information
required by Rule 1920.31(a) “is not just a simple discovery tool that is
requested by the parties in a typical civil case,” but rather the filing of
information is mandatory. Husband’s Brief at 27. Husband maintains that
prejudice is presumed based on the mandatory nature of the rule, but in any
event prejudice was present here as both he and the trial court did not have
the full picture of Wife’s economic situation, such as whether she had any
savings or investments and the exact nature of her current insurance
coverage.
Rule 1920.31(a) provides in relevant part as follows:
(a)(1) If a party has raised a claim for alimony, counsel fees, or
costs and expenses, the parties shall file a true copy of the most
recent federal income tax return, pay stubs for the preceding six
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months, a completed Income Statement in the form required by
Pa.R.C.P. No. 1910.27(c)(1), and a completed Expense Statement
in the form required by Pa.R.C.P. No. 1910.27(c)(2)(B). A party
may not file a motion for the appointment of a master or a request
for court action regarding alimony, counsel fees, or costs and
expenses until at least 30 days following the filing of that party’s
tax returns, Income Statement, and Expense Statement. The
other party shall file the tax returns, Income Statement, and
Expense Statement within 20 days of service of the moving party’s
documents.
...
(3) If a party fails to file the documents as required by subdivision
(a)(1), the court on motion may make an appropriate order under
Pa.R.C.P. No. 4019 governing sanctions.
Pa.R.C.P. No. 1920.31(a).
Under Rule 4019, trial courts may impose sanctions on a party’s failure
to meet discovery obligations, upon the motion of another party to the action.
Pa.R.C.P. No. 4019(a). “[T]he purpose of [Rule 4019] discovery sanctions is
to secure compliance with our discovery rules and court orders in order to
move the case forward and protect the substantive rights of the parties, while
holding those who violate such rules and orders accountable.” Rohm & Haas
Co. v. Lin, 992 A.2d 132, 147 (Pa. Super. 2010). Rule 4019 authorizes a trial
court to impose a broad range of sanctions, including, as relevant here:
(2) an order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting such party
from introducing in evidence designated documents, things or
testimony [];
(3) an order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or entering a
judgment of non pros or by default against the disobedient party
[];
(4) an order imposing punishment for contempt [];
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(5) such order with regard to the failure to make discovery as is
just.
Pa.R.C.P. No. 4019(c).
We agree with Husband that the requirements set forth in Rule
1920.31(a)(1) are mandatory in nature. “The word ‘shall’ by definition is
mandatory, and it is generally applied as such.” Chanceford Aviation
Properties, L.L.P. v. Chanceford Township Board of Supervisors, 923
A.2d 1099, 1104 (Pa. 2007); see also In re Adoption of L.B.M., 161 A.3d
172, 179 (Pa. 2017). Unless its usage is ambiguous, courts must construe
“shall” as mandatory. L.B.M., 161 A.3d at 179; Chanceford Aviation, 923
A.2d at 1104. Rule 1920.31(a)(1) clearly states that, where a party brings a
claim for alimony, counsel fees, or costs and expenses, each of the parties to
the divorce “shall” file the income and expenses statements in the form set
forth, as well as six months of pay stubs and their most recent tax return.
Pa.R.C.P. No. 1920.31(a)(1). The rule also imposes timing requirements on
the financial disclosures, providing that the moving party must file their
documents more than 30 days before filing their petition and that the opposing
party must file their own documents within 20 days of receipt of the moving
party’s submission. Id.2
The use of the word “shall” in this rule “does not suggest anything other
than the general meaning of the word” as setting forth a mandatory
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2 We note that while pay stubs are omitted from the timing provisions of the
second and third sentences of Rule 1920.31(a)(1), the filing of six months of
pay stubs is still mandated under the first sentence of the rule.
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requirement. L.B.M., 161 A.3d at 179; see also Pa.R.C.P. No. 103(a)
(“Words and phrases shall be construed according to rules of grammar and
according to their common and approved usage[.]”); Pa.R.C.P. No. 127(b)
(“When the words of a rule are clear and free from all ambiguity, the letter of
it is not to be disregarded under the pretext of pursuing its spirit.”). The
mandatory reading of Rule 1920.31(a)(1) is reinforced by the fact that
subdivision (a)(3) permits the trial court to impose sanctions for the failure of
a party to file the required financial disclosures.3
In this case, Wife did not fully follow the requirements of Rule
1920.31(a)(1). Wife did comply to the extent that she filed six months of pay
stubs and her 2017 federal income tax return on January 30, 2019. She also
filed her 2018 federal income tax return on April 25, 2019. However, Wife did
not submit an income statement. Furthermore, her expense statement, which
was filed on February 4, 2019, was hand-written and not in the format set
forth in Rule 1910.27(c)(2)(B), nor did it contain all the relevant information
listed on the form. Wife also did not wait 30 days after submitting her financial
documents to pursue her claims for alimony and counsel fees, but instead she
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3 Although we deem Rule 1920.31(a)(1) to impose mandatory requirements,
we are also mindful of Rule 126, which provides that the Rules of Civil
Procedure “shall be liberally construed to secure the just, speedy and
inexpensive determination of every action or proceeding,” and a trial court
“may disregard any error or defect of procedure which does not affect the
substantial rights of the parties.” Pa.R.C.P. No. 126.
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filed her petition on March 4, 2019, only 28 days after she filed her expense
statement.
Husband requests that we vacate the awards of alimony and counsel
fees based upon Wife’s failure to strictly adhere to the requirements of the
rule. Such relief is unwarranted. Subdivision (a)(3) of Rule 1920.31 provides
recourse to a party who is dissatisfied with another party’s compliance with
their disclosure obligations: a motion for sanctions under Rule 4019. A motion
under Rule 4019 would have encouraged Wife’s compliance with her
obligations under Rule 1920.31(a)(1) and afforded the trial court with the
opportunity to craft a sanction appropriate to Wife’s failure to provide the
required documents. Husband, however, did not file a motion for sanctions
either before or after the master’s hearing, instead only raising the issue in
his exceptions to the master’s report and requesting that the trial court impose
the extreme remedy of barring Wife’s receipt of any amount of alimony or
counsel fees. We discern no abuse of discretion in the trial court’s rejection
of Husband’s request in light of Husband’s failure to file the required motion
for sanctions.4
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4 Our determination that Husband’s first appellate issue merits no relief is
reinforced by the fact that he also failed to fully comply with Rule
1920.31(a)(1), only filing his 2017 tax return on the date of the master’s
hearing and not filing pay stubs or an income or expense statement at any
point during the proceedings below. As explained above, this rule imposes
the requirement of filing these documents on both “parties” to a divorce in the
event either one files a request for alimony or fees. Pa.R.C.P. No.
1920.31(a)(1). While Husband may claim that his lack of compliance was
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The trial court also did not abuse its discretion in awarding alimony and
counsel fees in spite of the fact that Wife filed her petition for alimony and
counsel fees only 28 days after filing her expense statement, instead of the
30 days required by Rule 1920.31(a)(1). As the trial court explained in its
opinion, Wife’s pay stubs and 2017 tax return were filed on January 30, 2019,
more than 30 days before the filing of the petition, and the master’s hearing
that was originally scheduled for March 4, 2019 was continued until April 30,
2019 upon the filing of the petition. Trial Court Opinion, 11/25/20, at 2-3. In
addition, a support proceeding was ongoing at this same time, and the trial
court awarded Wife $645 per month in child support and $260 in spousal
support in February 2019 based upon a consideration of the parties’ financial
status. Id. at 2. Therefore, we agree with the trial court that in light of the
rescheduling of the master’s hearing and the parallel support proceeding,
Husband did not suffer any prejudice as a result of the petition “being filed on
Day [28], rather than Day 30.” Id. at 3.5
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excused by Wife’s failure to file all of required documents, this fact only
reaffirms that disputes related to the parties’ adherence to the obligations of
Rule 1920.31(a) are best resolved through a motion for discovery sanctions
where the trial court can weigh the parties’ conduct throughout the
proceeding.
5 Husband also argues that the trial court abused its discretion in awarding
alimony and counsel fees because the court’s focus was improperly focused
on allowing Wife to maintain the same level of income after her impending
loss of her child support benefits. Husband’s Brief at 32. However, this issue
was not included in Husband’s concise statement of errors filed pursuant to
Rule of Appellate Procedure 1925(b). Therefore, this issue is waived. See
Pa.R.A.P. 1925(b)(4)(vii) (issues not included in Rule 1925(b) statement are
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In his second appellate issue, Husband argues that the trial court abused
its discretion in awarding Wife a 50% share of the ongoing royalties from the
oil and gas lease on the marital property. Husband avers that the trial court
“wasn’t trying to effectuate economic justice amongst the parties, but instead
to supplement [Wife’s] monthly income.” Husband’s Brief at 35. Husband
asserts that the trial court did not account for the fact that he has been solely
responsible for paying the mortgage, property taxes, homeowner’s insurance
policy, and all of the other upkeep and bills on the property since the couple’s
separation. Husband argues that the award to Wife of an equal share of the
oil and gas royalties was excessive in light of the trial court’s grant to Wife of
60% of the value of the marital property and its finding that there was $23,186
of equity in the house despite the fact that Husband submitted mortgage
documents to the court showing a negative equity of $14,000.
Our review of a challenge of an equitable distribution award is governed
by the following standards:
A trial court has broad discretion when fashioning an award of
equitable distribution. Our standard of review when assessing the
propriety of an order effectuating the equitable distribution of
marital property is whether the trial court abused its discretion by
a misapplication of the law or failure to follow proper legal
procedure. We do not lightly find an abuse of discretion, which
requires a showing of clear and convincing evidence. This Court
will not find an abuse of discretion unless the law has been
overridden or misapplied or the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
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waived); Grabowski v. Carelink Community Support Services, Inc., 230
A.3d 465, 476 (Pa. Super. 2020).
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bias, or ill will, as shown by the evidence in the certified record.
In determining the propriety of an equitable distribution award,
courts must consider the distribution scheme as a whole. We
measure the circumstances of the case against the objective of
effectuating economic justice between the parties and achieving a
just determination of their property rights.
Moreover, it is within the province of the trial court to weigh the
evidence and decide credibility and this Court will not reverse
those determinations so long as they are supported by the
evidence. We are also aware that a master’s report and
recommendation, although only advisory, is to be given the fullest
consideration, particularly on the question of credibility of
witnesses, because the master has the opportunity to observe and
assess the behavior and demeanor of the parties.
Brubaker v. Brubaker, 201 A.3d 180, 184-85 (Pa. Super. 2018) (citation
omitted).
In fashioning the equitable distribution award, the trial court is required
to consider the factors set forth in Section 3502(a) of the Divorce Code, 23
Pa.C.S. § 3502(a).6 Goodwin v. Goodwin, 244 A.3d 453, 463 (Pa. Super.
2020).
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6 The relevant factors are:
(1) The length of the marriage.
(2) Any prior marriage of either party.
(3) The age, health, station, amount and sources of income, vocational
skills, employability, estate, liabilities and needs of each of the parties.
(4) The contribution by one party to the education, training or increased
earning power of the other party.
(5) The opportunity of each party for future acquisitions of capital assets
and income.
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However, there is no standard formula guiding the division of
marital property and the method of distribution derives from the
facts of the individual case. While the list of factors in Section
3502 serves as a guideline for consideration, the list is neither
exhaustive nor specific as to the weight to be given the various
factors. Accordingly, the court has flexibility of method and
concomitantly assumes responsibility in rendering its decisions.
Id. (citation omitted).
Our review of the record reveals that the trial court considered each of
the Section 3502(a) factors in its equitable distribution order, adopting the
master’s findings as applicable and supplementing the master’s findings as
the court saw fit. Order, 3/12/20, at 2-5. In fashioning the award, the trial
court noted that Wife did not work or only worked part-time throughout the
marriage as she was the primary caregiver for the couple’s two children. Id.____________________________________________
(6) The sources of income of both parties, including, but not limited to,
medical, retirement, insurance or other benefits.
(7) The contribution or dissipation of each party in the acquisition,
preservation, depreciation or appreciation of the marital property,
including the contribution of a party as homemaker.
(8) The value of the property set apart to each party.
(9) The standard of living of the parties established during the marriage.
(10) The economic circumstances of each party at the time the division
of property is to become effective.
(10.1) The Federal, State and local tax ramifications associated with
each asset to be divided, distributed or assigned, which ramifications
need not be immediate and certain.
(10.2) The expense of sale, transfer or liquidation associated with a
particular asset, which expense need not be immediate and certain.
(11) Whether the party will be serving as the custodian of any
dependent minor children.
23 Pa.C.S. § 3502(a).
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at 5. The court stated that in addition to the support payments from Husband,
Wife’s net monthly income was $1,266 based upon her working 25 hours per
week and she had no employer-provided medical insurance or retirement
benefits. Id. The court recognized that Wife has suffered health problems
and will lose medical coverage through Husband’s employment upon the
divorce and she is unlikely to realistically improve her earnings aside from
increasing to full-time hours based upon the fact that she only has a high
school diploma. Id. at 6-7.
The trial court noted that Husband is in good health and has full-time
employment as a mechanic with employer-provided medical insurance and a
modest contribution to his 401(k) plan. Id. Therefore, in spite of his spousal
support and child support obligations, Husband still had a substantially higher
net monthly income of $2,707. Id. at 7. Additionally, the court stated that
the parties have each been receiving oil and gas royalties from the marital
property since 2012, which the parties have been utilizing to meet their
monthly expenses. Id. The court observed that the $150,000 stipulated
value of the house did not encompass the value of the oil and gas deposits on
the property. Id. at 4.
There is no dispute that the oil and gas lease was signed during the
marriage and that Wife was entitled to her share of the proceeds from the
lease during the course of the marriage. While, as Husband points out, he
has been solely responsible for the mortgage, taxes, and expenses related to
the marital property during the parties’ separation, he was also exclusively in
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possession of the property and therefore the only party benefitting from living
in the jointly owned marital home during this same period. Cf. Lee v. Lee,
978 A.2d 380, 385 (Pa. Super. 2009) (trial court has discretion in equitable
distribution order to award party dispossessed from marital property a credit
for one-half of the fair rental value of the marital home as compensation for
their inability to use the property). Furthermore, no evidence was submitted
below concerning what portion of the expenses or taxes are solely attributable
to the oil and gas rights on the property. We likewise find no merit in
Husband’s contention that the trial court overly relied on the fact of Wife’s low
income in arriving at the award as Section 3502(a) explicitly provides that the
court shall consider the “sources of income of both parties” when distributing
marital property. 23 Pa.C.S. § 3502(a)(6); Hess v. Hess, 212 A.3d 520, 524
(Pa. Super. 2019).
Viewing the equitable distribution award as a whole, it is clear that the
trial court thoroughly considered the Section 3502(a) factors in arriving at its
award. As an appellate court, we may not revisit the trial court’s consideration
of these factors on appeal. Goodwin, 244 A.3d at 465. We therefore detect
no abuse of discretion in the trial court’s decision to award Wife one-half of
future oil and gas royalties.7
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7 We observe that, while Husband claims that the trial court’s finding of over
$23,000 in equity in the marital home was based upon an erroneous
interpretation of the mortgage documents, this issue was not raised in
Husband’s Rule 1925(b) statement and therefore is not before us in this
appeal.
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For the foregoing reasons, we affirm the trial court’s order awarding
alimony and counsel fees to Wife and its equitable distribution of the parties’
marital property.
March 12, 2020 order and September 23, 2020 decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/2/2021
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